1.      This first appeal has been filed by Shri R.K.Nath, appellant against the order dated 20.02.2015 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’) passed in Complaint Case No.CC/93/2010.

2.      Brief facts of the case are that on 02.03.2006, appellant purchased a printer being Hewlett Packard Color laser 9850 mfp from the authorised agent of the respondents, being respondent No.3. On 07.07.2006, appellant received delivery of the said printer.  Appellant entered into a service contract with respect to maintenance and upkeep of the Printer with respondent No.3.  In the year 2007, printer started creating problems inasmuch as it did not function properly causing inconvenience to the appellant.  Several engineers/maintenance/repair staff from the Kolkata Service Centre of Hewlett Packard, specifically respondent No.2, visited the printing press premises run by the appellant and attempted to address the issue faced by the appellant; but failed to address the issue and the printer was still out of order.  On 23.06.2009, appellant received a notice from the Kolkata Debt Recovery Tribunal directing him to appear before the said Tribunal as Oriental Bank of Commerce, had instituted OA No.387/2009 u/s 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 on account of him having defaulted in payment of instalments for repayment of bank loan.  Appellant served a notice dated 14.01.2010 upon the respondents calling upon them to refund the consideration amount of the said printer being Rs.32,00,000/- (Rupees Thirty Two Lakhs only) along with damages amounting to Rs.20,00,000/- (Rupees Twenty Lakhs only) within 7 days from the date of receipt of the aforementioned notice.  On 13.12.2010, complaint case No.CC/93/2010 was filed by the appellant herein against the respondent before the State Commission.  On 24.02.2012, order was  passed by the State Commission holding that the “complainant is very much a consumer as per provisions of the Consumer Protection Act, and the case is very much maintainable on that point also”.  On 20.02.2015, impugned order was passed by the State Commission whereby it dismissed Complaint Case No.CC/93/2010 preferred by the appellant herein.

3.      Hence, the present appeal.

4.      Heard the learned counsel for the parties and perused the record.

5.      Learned counsel for the appellant argued that the State Commission vide its order dated 20.2.2015 has dismissed the complaint on the ground that the complainant is not a consumer as per the definition given under the Consumer Protection Act, 1986.  The learned counsel pointed out that the State Commission while deciding the MA No.279 of 2011filed by the opposite party had earlier decided that the complainant was a consumer and the MA No.279 of 2011 was dismissed.  This amounts to review of the order of the State Commission passed in MA No.279 of 2011 dated 24.02.2012.  The learned counsel for the appellant further stated that the printer was purchased for the proprietorship concern and the complainant being the proprietor of the concern had taken it for his livelihood purpose as he is self-employedin running the printing press.  Thus, as per the explanation given under Section 2(1)(d) of the Consumer Protection Act, the complaint falls within the definition of the consumer.

6.      Learned counsel for the appellant has informed that there is a delay of 28 days in filing present appeal.  The reason given in the application for condonation of delay is that the complainant due to his poor financial condition because of non-working of the printer in question could not send Advocate from Kolkata to Delhi to file the revision petition in time.  Hence the delay may be condoned.

7.      On the other hand, learned counsel for the respondent stated that there is no mention in the complaint about the fact that the complainant is earning his livelihood through self-employment.  Hence, it cannot be presumed that the complainant was having livelihood by means of self-employment in the proprietorship concern.  The learned counsel for the respondent further argued that the order dated 24.02.2012 was only an interim order whereas, the impugned order dated 20.02.2015 is a final order.  The order dated 24.02.2012 was passed when the case was in its initial stage, however, the final order has been passed after due assessment of the evidence on record. So many orders are passed by the forum during the proceedings but all these merge into the final order and it is the final order that decides the case.  Thus, there is no illegality in the impugned order dated 20.02.2015 of the State Commission.

8.      Learned counsel for the respondent also stated that there is a delay of 28 days in filing the appeal and the appeal may be dismissed on this ground alone. 

9.      Learned counsel for the respondent cited the following judgment:-

Saurabh Gupta &Ors. Vs. Hasti Petro Chemicals & Shipping Ltd., FA No.856 of 2013, decided on 13.03.2014 (NC).  It has been held that:

“12.In the instant case, the facts of the case given in the complaint state clearly that the transaction of purchase of machines between the parties was done in the year 2010 and hence, it is a case after the amendment made in the year 2003. A perusal of the contents of the complaint bring out clearly that the said machines were obtained for a commercial purpose and there is no mention anywhere that the transaction was done for the purpose of earning livelihood by means of self-employment. The first paragraph of the complaint states that the complainant deals in the business of transportation of domestic and exim cargo, warehousing, fuel stations, container repair yard, truck trailer repair workshops and is having its own inland container depots at Jodhpur at Rajasthan and at Anand in Gujarat. The two forklift trucks were, therefore, to be purchased for commercial purpose only. In the written reply to the complaint filed by the petitioner/OP before the State Commission, it has been stated, “that the purchase of the forklift was solely for commercial purpose of complainant company; hence, the complainant company does not fall under the purview of the definition of ‘consumer’ under the Consumer Protection Act, 1986 and the complaint deserves to be dismissed on threshold.”

10.    I have carefully considered the arguments advanced by both the parties and have examined the record. In respect of delay in filing the appeal, it is found that the appeal has been filed with a delay of 28 days because prima facie the complainant could not send the counsel from Kolkata to Delhi to file appeal in time due to his poor financial condition. therefore, in the interest of justice, the application for condonation of delay is allowed at a cost of Rs.5,000/-(Rupees Five Thousand) only to be deposited by the complainant with the Consumer Legal Aid Account of the State Commission.

11. The order dated 24.02.2012 of the State Commission reads as follows:-

“We have duly considered the submissions so put forward on behalf of the Misc. Applicants and have also considered the pleadings of the parties and materials on record and find that admittedly the period of contract entered into between the parties is for sixty months.  If that be the position, in our opinion, it would be quite premature to consider the period of limitation at this very initial stage.  Rather, on the face of the record it transpires that the complainant has filed the present complaint case well within the statutory period.  So far as it relates to the point of consumer, we are of the considered opinion that the complainant is very much a consumer as per provisions of the Consumer Protection Act and the case is very much maintainable on that point also.

Having considered the present Misc. Application in the light of above discussion we find no merit in the present Misc. Application, which accordingly stands dismissed on contest without any order as to cost.  The Misc. Application stands disposed of.”

12.    From the above order it is evidently clear that two preliminary objections were raised by the opposite party/respondent through MA No.279 of 2011.  The first objection was regarding limitation and the second was that the complainant was not a consumer.  The State Commission has not finally decided the issue of limitation, whereas in respect of complaint not being a ‘consumer’, the State Commission has clearly decided that the complainant is very much a consumer as per provisions of the Consumer Protection Act and the case is very much maintainable on that point also. However, the State Commission in its final order dated 20.02.2015 has finally decided that:

“The Miscellaneous Application was dismissed vide order date 24/02/12 holding that it was at the early stage of the proceeding.  Now after the evidence was led by the parties and after hearing of argument of both sides it appears that the invoice was issued in the name of the purchaser “Visual Point”.  The terms and conditions were signed by the Complainant Mr. R.K.Nath for “Visual Point”.  From the letter written by the complainant on 24/09/07 to the OP it appears that the Complainant admitted therein that he was engaged in business to make profits.  In another letter dated 04/03/08 the Complainant stated that due to the problem with the machine he had to incur heavy loss in his business.  There is no averment in the complaint that the Complainant is running the business for earning livelihood by means of self-employment.  Although the complaint was filed by the Complainant in his individual capacity it is evident from the materials on record that the machine is used in his Digital Press which is undoubtedly the commercial activity on the part of the Complainant. Under such circumstances, we are of the view that the complainant is not a consumer within the meaning of section 2(1)(d) of the C.P. Act, 1986 and he is not entitled to get any relief.”

13.    From the order of the State Commission, it becomes amply clear that earlier order dated 24.02.2012 2has been reviewed and finally the order dated 24.02.2012 has been annulled.  Hon’ble Supreme Court in the case of Rajeev Hitendra Pathak & Ors.Vs. Achyut KasinathKarekar & Anr. (2011) 9 SCC has held that the District Forum or the State Commission cannot review their own orders.  In fact the order mentions as below:

“34.  On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute.  The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised.

35. The legislature chose to give the National Commission power to review its ex parte orders.  Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court.  The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers.  We have carefully ascertained the legislative intention and interpreted the law accordingly.”

14.    Once the State Commission has decided that the complainant was very much a consumer under the Consumer Protection Act, 1986, the State Commission should have decided the complaint on all points rather than dismissing it only on the point that the complainant was not a consumer.  Prima -facie it appears that the complainant is the proprietor of the concern and is self-employed with the concern.  The State Commission has mentioned that the complainant has used the words like ‘business and ‘loss in business’, but this does not unnecessarily mean that business activity of the complainant is not for livelihood under self-employment.  As the State Commission has originally decided vide order dated 24.02.2012 that the complainant was a consumer, the complaint should have been decided on all the points in the final order.  At this point of time, this Commission is not expressing any final view on the subject matter whether the complainant is a consumer or not, however it seems necessary to remand the case for fresh final decision of the State Commission in respect of all the points raised in the complaint treating the complainant as a consumer.  Once the final order is passed, obviously the opposite party can avail the services of this Commission by filing the appeal if needed. 

15.    Based on the above discussion, the appeal is partly allowed by condoning the delay of 28 days in filing the appeal at a cost of Rs.5,000/-(Rupees Five Thousand) only to be deposited by the appellant in the Consumer Legal Aid Account of the State Commission on or before the next date of appearance before the State Commission.  The order dated 20.02.2015 of the State Commission is set aside and the matter is remanded back to the State Commission for deciding the complaint in respect of all the points raised in the complaint in its final order, as if the complainant was a consumer as held by order dated 24.02.20012 of the State Commission.  Parties to appear before the State Commission on 30.05.2017.